On April 12, 2011, I was working as a case manager at the DC Abortion Fund when we received an urgent call from a clinic. Congress had reinstated its ban on Washington, DC using its funds to cover abortion as a part of its Medicaid program. Twenty-eight women scheduled for procedures the next day were in danger of being turned away. Now, women across Texas could face the same fate.

On November 1, about one-third of Texas abortion clinics  the majority of them in rural areas  were forced to start turning women away. Most of these clinics will likely have to close, ending their provision of other necessary health services. Some women are now risking their health by crossing the Mexican border or buying abortifacient drugs at flea markets. This is a result of HB2, the extreme state statute that passed in a second special session called by Governor Rick Perry, after the first special session ended in a 13 hour filibuster by Texas Senator Wendy Davis. Among other restrictions, HB2 requires doctors performing abortions to have admitting privileges at a hospital within 30 miles  a costly, unnecessary and unrealistic requirement.

Originally, District Court Judge Lee Yeakel enjoined [PDF] this law, finding that the requirement placed a substantial obstacle in the way of access to abortion for women with nonviable fetuses and had no "rational basis" in a state interest. But the US District Court for the Fifth Circuit disagreed, in a decision upheld by the US Supreme Court. The circuit court and the US Supreme Court's conservative majorities focused on the first two prongs of the emergency stay standard: whether the state was likely to prevail on the merits of the underlying case and whether the state would be irreparably harmed. Justice Scalia, for the majority, seemed to care deeply about the supposed "irreparable injury" of an injunction of HB2 to the state of Texas. On the other hand, he disdained having to discuss at all the third prong, concerning harm to "third parties," i.e. the women of Texas, which would result from the allowing the law to go into effect. For those of us who believe people should have access to the full range of health care that they need, this is heartbreaking. But the legal fight over HB2 also has broader implications  everyone who wants the judiciary to consider and understand the effects of its decisions on actual people should be angry.

Abortion jurisprudence is a politically messy example of the failure of courts to consider the effect of the law on people's lives. This stems in large part from the evolution of the "undue burden standard" developed by the Supreme Court in 1992's Planned Parenthood v. Casey. Rejecting Roe v. Wade's framework, the court stated that restrictions on abortion were unconstitutional if they posed an "undue burden"; that is, they had the "purpose or effect [of placing] a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." That text could be read as protective of abortion access, but the court dismissed that reading quickly by approving requirements that force doctors to read specific scripts to patients, women to wait 24 hours before obtaining abortions and minors to get parental permission. The Casey court was unwilling to examine either the District Court's factual record or the extensive social science documenting the burdens caused by the parental consent requirement.

In the years since, the Supreme Court has rarely revisited this standard. Meanwhile, state legislatures have been busy. In 2011 alone, states passed 135 provisions restricting abortion access. In analyzing these new restrictions, lower courts have echoed the Supreme Court's callousness on this issue. Applying the undue burden standard, courts often look only to the law in a vacuum, ignoring how the law interacts with the myriad of other restrictions in place. Many courts have interpreted the standard to require near-certainty that restrictions not necessarily yet in effect will impose a burden on women, while also refusing to acknowledge testimony about how the new restrictions would burden women or how these restrictions would affect poor or rural women drastically. For example, the Eighth Circuit has interpreted [PDF] the undue burden standard to require that doctors lie to their patients by reading scripts which contain the false information that abortion is linked to breast cancer and increased risk of suicide.

The courts' treatments of abortion restrictions is a symptom of a legal regime that allows judges to ignore the real-life consequences of the law, mirroring the courts' refusals to consider the real world effects of regulation in other areas, like the Supreme Court's treatment of the Voting Rights Act in Shelby County v. Holder, eliminating the key parts of the Voting Rights Act due to changed circumstances, but ignoring the fact that many of those "changed circumstances" depended at least partially on the continued efficacy of the Voting Rights Act's success. Undeniably, the courts' application of the undue burden standard is a function of ideology: the federal bench has trended more and more conservative in recent years. This makes judges less likely to favor abortion rights substantively. But, conveniently in line with these substantive beliefs, it also means that judges are more likely to follow Justice Scalia's strong textualist, originalist bent. They are less willing to analyze a law in its larger context, to adjust their thinking based on the reality of the law's effects. Outside of law schools and courtrooms, it's rare that one believes that judges should ignore the real consequences of their decisions in this way. It creates bad law and walks back the benefits of good law. The abortion rights context shows this clearly.

The conservative Fifth Circuit heard arguments on the merits of the Texas case this past Monday, January 13. Following the Circuit's previous application of the undue burden standard, I am not optimistic about the outcome. The appeals court already indicated that they believe the state is likely to succeed on the merits in their emergency stay decision. If they decide HB2 passes constitutional muster, they will be saying that a law that shutters one-third of Texas abortion clinics and sends women to the black market or across the border does not place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. That's preposterous. However, this could be a time where the Fifth Circuit, and perhaps eventually the Supreme Court, chooses to draw a line in the sand. This time, the courts could look to reality and recognize HB2 for what it is: a law that creates an unconstitutional, undue burden to a woman's right to access abortion.

Abbey Marr is an online content editor for the Harvard Journal of Law and Gender. She served as President of Harvard Law Students for Reproductive Justice from 2012-13. She has worked as Secretary for Law Students for Reproductive Justice since 2012. In 2013, she began working at the Berkeley Law Center for Reproductive Rights and Justice. She earned a Bachelor of Arts in Political Science and Women's Studies while graduating summa cum laude from George Washington University.

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